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2024 DIGILAW 436 (GAU)

State Of Assam v. Naba Kumar Sarania

2024-04-03

SUMAN SHYAM, VIJAY BISHNOI

body2024
JUDGMENT & ORDER : Vijay Bishnoi, J. 1. Heard Mr. D. Saikia, learned Advocate General, Assam, assisted by Mr. K. Gogoi and Mr. R. Dhar, learned counsel appearing for the appellants. Also heard Mr. Salman Khursid, learned senior counsel, assisted by Mr. R. Bezbaruah, learned counsel appearing for the respondent No. 1/writ petitioner. 2. It is seen that the respondent No. 1 has put in appearance as a Caveator, whereas notice of this appeal has not been issued to the respondents No. 2, 3 and 4. However, taking into consideration the urgency involved in the matter and also taking into consideration the fact that the respondents No. 2, 3 and 4 are proforma respondents and their interest is akin to that of the appellants, with the consent of the learned counsel for the parties, we deem it appropriate to dispose of this appeal finally without formally issuing notice to the respondents No. 2, 3 and 4. 3. This intra-court writ appeal is filed on behalf of the appellants challenging the order dated 27.03.2024 passed by the learned Single Judge in WP(C) 1394/2024, whereby the learned Single Judge has passed an interim order suspending the impugned order dated 12.01.2024 passed by the State Level Caste Scrutiny Committee and all consequential action thereof affecting the tribal status of the writ petitioner/respondent No. 1 herein, including the order of cancellation of such certificate, till disposal of the writ petition. 4. The brief facts of the case are that the State Level Caste Scrutiny Committee (hereinafter referred as “SLSC”) vide order dated 12.01.2024 has opined that the respondent No. 1 does not belong to Bodo/Bodo Kachari community, which is a recognized ST(P) community in Assam. It is noticed that pursuant to the said opinion expressed by the SLSC, the Caste Certificate dated 17.10.2011, issued in favour of the respondent No. 1 certifying that the respondent No. 1 belongs to Scheduled Tribe (Plains) Caste/Community (Bodo Kachari), issued by the Assam Tribal Sangha, Tamulpur District Unit, has been cancelled by the Government of Assam, Department of Tribal Affairs (Plains) vide order dated 20.01.2024. Being aggrieved with the order dated 12.01.2024 passed by the SLSC, the respondent No. 1 has preferred the writ petition before this Court claiming the following reliefs: “i. To quash and set aside the Impugned order issued vide No.DW/VC/739/2019-20/5 dated 06.06.2019 (Annexure-7) constituting a Vigilance Cell in the Directorate of WPT & BC, Assam being issued in violation of direction No.5 of para 13 of Kumari Madhuri Patil’s case; ii. To quash and set aside the Impugned Communication No.TAD/BC/376/2019/71, dated 11.07.2019 (Annexure-9) issued by the Deputy Secretary, WPT & BC requesting for enquiry into the Social Status of the petitioner having no authority; iii. To quash and set aside the Impugned Notification No.TAD/BC/855/2013/183 dated 05.09.2022 (Annexure-26) reconstituting the State Level Scrutiny Committee (SLSC) being issued in violation of direction No.4 of para 13 of Kumari Madhuri Patil’s case and iv. To quash and set aside the impugned so called speaking Order bearing No.CCF 265487/785, dated 12.01.2024 (Annexure-27) of the State Level Scrutiny Committee being malafide, perverse and violation of directions of Kumari Madhuri Patil’s case and/or v. after return of the Rule and hearing of the parties, being further pleased to make the Rule Absolute giving full and complete relief to the petitioners and/or pass such other order or orders as this Hon’ble Court may deem fit in the facts and circumstances of the case, and In the interim, pending disposal of this writ petition, the Hon’ble Court would be pleased to stay the operation of the impugned order bearing No. CCF 265487/785 dated 12.01.2024 passed by the State Level Scrutiny Committee (Annexure-27) and any consequential order(s) passed or issued by the authority and/or pass such other order or orders as this Hon’ble Court may deem fit in the facts and circumstances of the case. 5. It is an admitted position that the order dated 20.01.2024 passed by the Government of Assam, Department of Tribal Affairs (Plains) cancelling the ST(P) Certificate issued in favour of the respondent No. 1 has not been challenged in the writ petition. The learned Single Judge, vide the impugned order has passed an interim order, as indicated above, however, has kept the writ petition pending for final adjudication. 6. The learned Single Judge, vide the impugned order has passed an interim order, as indicated above, however, has kept the writ petition pending for final adjudication. 6. From a perusal of the impugned order, it can be gathered that the learned Single Judge has recorded the following prima facie opinion: (i) The SLSC has not given any reason, even in brief, as regards the finding of the Enquiry Officer, the contention raised by the petitioner or by the private respondent in the writ petition. (ii) The Vigilance Officer did not examine the petitioner personally and his non-examination is suggestive of violation of a right envisaged in paragraph 5 of the judgment rendered by the Hon’ble Supreme Court in Kumari Madhuri Patil vs. Additional Commissioner, Tribal Development, reported in (1994) 6 SCC 241 . (iii) The petitioner was not provided with any opportunity of leading evidence in the proceedings before the SLSC to defend his social status though such right is pivotal for a fair proceeding for determination of caste status under the mandate of Kumari Madhuri Patil (supra) and under the scheme of the Office Memorandum dated 11.05.2018. 7. Assailing the impugned order, the learned Advocate General has vehemently submitted that the Vigilance Officer as well as the SLSC have followed the procedure prescribed in Kumari Madhuri Patil (supra) as well as in the Office Memorandum dated 11.05.2018 in its full letter and spirit. Referring to paragraph 13.5 and 13.6 of Kumari Madhuri Patil (supra), it is argued that it is not mandatory upon the Vigilance Officer to examine the candidate in person. It is submitted that the Hon’ble Supreme Court has held that the Vigilance Officer should also examine the parents, guardians or the candidate or such persons who have knowledge of the social status of the candidate and then submit a report to the Director together with all particulars. It is contended that in the present case the Enquiry Officer has examined the mother and the brother of the respondent No. 1 and has not felt it necessary to examine the respondent No. 1 personally. However, the same cannot be treated as violation of the mandate of the Hon’ble Supreme Court rendered in (supra). 8. It is further contended that it is wrong to say that the respondent No. 1 was not granted reasonable opportunity of adducing evidence. However, the same cannot be treated as violation of the mandate of the Hon’ble Supreme Court rendered in (supra). 8. It is further contended that it is wrong to say that the respondent No. 1 was not granted reasonable opportunity of adducing evidence. Learned Advocate General has referred to the notice dated 11.03.2020 (Annexure-18 appended to the writ petition) and has submitted that in the said notice it is clearly mentioned that the respondent No. 1 is required to submit his explanation as to why the ST(P) Certificate issued in his favour be not cancelled. It is submitted that in reply to the said notice dated 11.03.2020 the respondent No. 1, vide his letter dated 30.05.2020, sought some time to file reply and the same was granted along with copies of the desired documents and, pursuant to that, the respondent No. 1 submitted a detailed reply dated 31.08.2020 with the request to permit him to submit additional reply, if so required, to clarify his stand. In his reply, the respondent No. 1 also sought for personal hearing after submission of the additional reply. It is submitted that the District Level Vigilance Cell (Caste Certificate), in its meeting dated 14.09.2020, referred the matter to the State Level Scrutiny Committee and the respondent No. 1 submitted his additional reply before the Chairman, SLSC. It is further submitted that in the two responses filed by the respondent No. 1, he did not ask for granting him opportunity to adduce evidence, rather, he clearly stated that he is grateful to the Chairman and the Members of the SLSC for giving patient hearing for the cause of justice. 9. It is argued that ample opportunity was there with the respondent No. 1 to adduce evidence, but if on his own volition he has not adduce evidence then it cannot be said that the SLSC has faulted in not providing opportunity of adducing evidence to the respondent No. 1. 10. Learned Advocate General has further submitted that a bare perusal of the impugned order dated 12.01.2024 reveals that the SLSC, after careful perusal and examination of the written statements, documents, certificates etc. submitted by the respondent No. 1; the complainant and the report submitted by the Vigilance Committee, has opined that the respondent No. 1 does not belong to Bodo/Bodo Kachari community. submitted by the respondent No. 1; the complainant and the report submitted by the Vigilance Committee, has opined that the respondent No. 1 does not belong to Bodo/Bodo Kachari community. It is argued that the order dated 12.01.2024 cannot be termed as a non-reasoned order in any manner. It is argued that the learned Single Judge has erred in giving a finding that the order passed by the SLSC is virtually a non-speaking order. 11. Learned Advocate General has further argued that the respondent No. 1 belongs to “Sarania Kachari” community, which is not a recognized Scheduled Tribe in Assam. Learned Advocate General has referred to the Central Order No. 22 dated 06.09.1950 and submitted that “Sarania Kachari” community is not an enlisted tribe. It is further submitted that though the Standing Committee on Social Justice and Empowerment, Government of India, has presented a bill in the Lok Sabha on 29.03.2012 and in the Rajya Sabha on 29.03.2012 with a proposal to include the “Sarania Kachari” community as a Scheduled Trible, till date the Parliament has not passed any law enlisting the “Sarania Kachari” community as a tribe. 12. It is contended that the Vigilance Officer had conducted a thorough enquiry during which he had visited the native place of the respondent No. 1, the school where the respondent No. 1 had studied up to Class-VII and the other school where the respondent No. 1 had studied further. It is submitted that during the said enquiry, the Vigilance Officer had taken into consideration a school certificate issued in the name of the father of the respondent No. 1, had examined many witnesses and had also scrutinized the revenue records. The Vigilance Officer had also personally examined the mother and the sister of respondent No. 1 including the Gaonburah and thereafter submitted his report. It is further contended that copy of the report of the Vigilance Officer was supplied to the respondent No. 1 who, in turn, filed his detailed response and the committee, after considering the response filed by the respondent No. 1, opined vide the impugned order that the respondent No. 1 does not belong to Bodo/Bodo Kachari community, which is enlisted as a Scheduled Tribe and, accordingly, recommended for cancellation of the ST(P) certificate issued in favour of the respondent No. 1. 13. 13. It is argued that the Constitution Bench of the Hon’ble Supreme Court, in the case of State of Maharashtra vs. Milind and Others, reported in (2001) 1 SCC 4 , has categorically held that a Presidential Order enlisting Scheduled Castes and Scheduled Tribes cannot be amended by the State but can only be amended by the Parliament. It is submitted that it is clear that the respondent No. 1 belongs to “Sarania Kachari” community and the same is not enlisted in the Central order No. 22 dated 06.09.1950 and, therefore, the ST(P) certificate issued in favour of the respondent No. 1 certifying him as a member of Bodo/Bodo Kachari community is not liable to be sustained. 14. Learned Advocate General has further argued that the interim order passed by the learned Single Judge virtually amounts to granting of final relief to the respondent No. 1. It is submitted that the main relief prayed for by the respondent No. 1 in the writ petition is for quashing of the order dated 12.01.2024 passed by the SLSC, and with the suspension of the said order dated 12.01.2024 till final disposal of the writ petition, the learned Single Judge has granted the final relief prayed for by the respondent No. 1 in the writ petition and the same is not in accordance with law. 15. It is therefore prayed that the impugned order passed by the learned Single Judge may kindly be set aside. It is also submitted that the appellants have no objection if the learned Single Judge decides the writ petition finally on urgent basis, however, in any case, the impugned order granting the final relief as prayed for in the writ petition at an interim stage cannot be sustained. 16. Per contra, Mr. Salman Khursid, learned senior counsel appearing for the respondent No. 1 has opposed the appeal filed on behalf of the appellants and has argued that in the facts and circumstances of the case, the learned Single Judge has not committed any illegality in passing the impugned order. Learned senior counsel for the respondent No. 1 has argued that from the mandate of Kumari Madhuri Patil (supra), it was incumbent upon the SLSC to give reasons, even if in brief, for accepting the report of the Vigilance Officer. Learned senior counsel for the respondent No. 1 has argued that from the mandate of Kumari Madhuri Patil (supra), it was incumbent upon the SLSC to give reasons, even if in brief, for accepting the report of the Vigilance Officer. It is submitted that a bare perusal of the order dated 12.01.2024 clearly reveals that no reasons have been given by the SLSC while giving its opinion for cancellation of the ST(P) certificate issued in favour of the respondent No. 1. It is submitted that the learned Single Judge has rightly observed that in absence of recording of reasons, even in brief, the order passed by the SLSC is in violation of the mandate of Kumari Madhuri Patil (supra). 17. Learned senior counsel has further submitted that in paragraph 13.5 of Kumari Madhuri Patil (supra) it is clearly mentioned that the Vigilance Officer shall personally examine the candidate. However, in the present case, the Vigilance Officer has not examined the respondent No. 1 personally and, as such, the findings recorded by the learned Single Judge to the effect that the right of the respondent No. 1 of personal examination has been violated is not liable to be interfered with. 18. It is further submitted that though the respondent No. 1 in his response filed to the Show Cause notice has not demanded for any opportunity to adduce evidence, however, principles of natural justice requires that the SLSC should have provided an opportunity to the respondent No. 1 by issuing a specific notice informing that he has a right to adduce evidence. In the absence of any such opportunity being given to the respondent No. 1, the learned Single Judge has not committed any illegality in holding that the mandate of the Hon’ble Supreme Court rendered in Kumari Madhuri Patil (supra) has been violated. 19. Learned senior counsel Mr. Khursid has further submitted that in the facts and circumstances of the case, the learned Single Judge has not committed any illegality in suspending the impugned order dated 12.01.2024 till final disposal of the writ petition. 20. 19. Learned senior counsel Mr. Khursid has further submitted that in the facts and circumstances of the case, the learned Single Judge has not committed any illegality in suspending the impugned order dated 12.01.2024 till final disposal of the writ petition. 20. It is argued that the respondent No. 1 has been a Member of Parliament for two terms and the election proceedings for the next Parliamentary Elections have already commenced, wherein the respondent No. 1 is also intending to contest and, therefore, if the order dated 12.01.2024 and the consequential order dated 20.01.2024 are not suspended, the respondent No. 1 will suffer irreparable loss. 21. It is further contended by the learned senior counsel for the respondent No. 1 that even if it is assumed, without admitting, that the writ petition filed by the respondent No. 1 is dismissed, then the consequences will follow, which would include a fresh Parliamentary Elections for a particular constituency in case the respondent No. 1 is elected in the ensuing Parliamentary Elections from that constituency. It is submitted that, on the other hand, if the orders dated 12.01.2024 and 20.01.2024 are not suspended then the respondent No. 1 will be deprived of a valuable right of contesting the elections. 22. It is also submitted by Mr. Khursid, learned senior counsel that the respondent No. 1 has no objection if the writ petition is finally decided by the learned Single Judge at the earliest. 23. We have considered the submissions advanced by the learned counsel for the parties and have perused the material available on record. 24. As observed earlier, the learned Single Judge has recorded prima facie findings to the effect that the SLSC has not recorded reasons in its order dated 12.01.2024; the Vigilance Officer has not personally examined the respondent No. 1 and the SLSC has also not provided any opportunity to the respondent No. 1 for adducing evidence. 25. So far as the question of recording of reasons by the SLSC is concerned, after perusal of the order dated 12.01.2024 we feel that the SLSC has taken into consideration the report of the Vigilance Officer; the responses filed by the respondent No. 1; the available documents, certificates etc. submitted by the respondent No. 1 and the complainant as well as the other materials available on record which were placed reliance upon by the SLSC. submitted by the respondent No. 1 and the complainant as well as the other materials available on record which were placed reliance upon by the SLSC. It is another question as to whether the reliance placed by the SLSC on the report of the Vigilance Officer, or the documents etc. produced by the parties and the written statements submitted by the respondent No. 1 are in accordance with law or not. However, in our considered view, the order of the SLSC, at the first instance, cannot be treated as a non-speaking order. 26. So far as the question regarding personal examination of the respondent No. 1 by the Vigilance Officer is concerned, it is to be noted that the primary responsibility of the Vigilance Officer is to conduct a fact finding enquiry and submit a report. If the finding of facts projected in such report remains un-rebutted by the contestant, then in that event, it will be open for the SLSC to form an opinion by taking cognizance of such report. After going through the paragraph 13.5 of Kumari Madhuri Patil (supra), it can therefore be said that in every case personal examination of the candidate, or even the parents, guardians, or other relatives is not mandatory. It is only when there is no other incriminating evidence available before the Vigilance Officer, he should personally examine the candidate, or the parents/guardians or other relatives of the candidate. In a given case, if the Vigilance Officer is able to collect evidence which, as per his own assumption is sufficient, he may or may not personally examine the candidate or other persons. 27. It is true that the SLSC has not issued any notice to the respondent No. 1 providing him opportunity to adduce evidence, but it can be gathered from the two responses filed by the respondent No. 1 that he did not demand for any opportunity for adducing evidence though he had requested for personal hearing by the committee and that request was accepted and the respondent No. 1 was personally heard. In the Show Cause notice issued to the respondent No. 1, it is clearly mentioned that the respondent No. 1 can submit his explanation within the stipulated time, or can desire for a personal hearing. The respondent No. 1 has been a Member of the Parliament for two terms and is not a layman. In the Show Cause notice issued to the respondent No. 1, it is clearly mentioned that the respondent No. 1 can submit his explanation within the stipulated time, or can desire for a personal hearing. The respondent No. 1 has been a Member of the Parliament for two terms and is not a layman. If he desired to adduce any evidence, he was free to adduce the same without even issuance of a specific notice to that effect by the SLSC. As a matter of fact, in his last response, the respondent No. 1 has expressed his gratitude towards the Chairman as well as the Members of the SLSC for giving him a patient hearing and this itself is sufficient to assume that he was satisfied with the opportunity provided to him by the committee. 28. At this stage we are not going into the question of inclusion of the “Sarania Kachari” community in the tribal list of the aforesaid Central order No. 22 since this may have some bearing on the merits of the case and, therefore, we deem it appropriate to leave it open for the learned Single Judge to adjudicate upon the said question and record findings. 29. The learned Single Judge has suspended the order dated 12.01.2024 passed by the SLSC and has also suspended the consequential order dated 20.01.2024 passed by the State of Assam cancelling the ST(P) certificate issued in favour of the respondent No. 1. Whereas the order dated 20.01.2024 is not under challenge and the main challenge in the writ petition is to the order dated 12.01.2024. In our opinion, suspension of the orders dated 12.01.2024 and 20.01.2024 by an interim order virtually amounts to granting of final relief to the respondent No. 1 without adjudication of the dispute on merits. The Hon’ble Supreme Court in various judgments rendered from time to time has deprecated the practice of granting interim order which practically amounts to giving the principal relief sought for in the writ petition. The Hon’ble Supreme Court in various judgments rendered from time to time has deprecated the practice of granting interim order which practically amounts to giving the principal relief sought for in the writ petition. On the aspect of granting interim order, the Three-Judges Bench judgment of the Hon’ble Supreme Court in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal -Vs- Dunlop India Limited & Ors., reported in (1985) 1 SCC 260 , has observed as under: “We repeat and deprecate the practice of granting interim order which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations. ......” In the case of State of Uttar Pradesh & Ors. Vs. Ram Sukhi Devi, reported in (2005) 9 SCC 733 , the Hon’ble Supreme Court observed as under: “......This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. ( 1985 (1) SCC 260 at p. 265), State of Rajasthan v. M/s Swaika Properties ( 1985 (3) SCC 217 at p.224), State of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214).] …...” In Mehul Mahendra Thakkar @ Karia Vs. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214).] …...” In Mehul Mahendra Thakkar @ Karia Vs. Meena Mehul Thakkar @ Karia, reported in (2009) 4 SCC 556, the Hon’ble Supreme Court observed as under: “Even before giving a verdict on the findings and the conclusions reached by the Family Court, by way of interim relief, the court has granted the main relief itself. This, in our opinion is unsustainable. It is settled legal position, that by way of interim relief, final relief should not be granted till the matter is decided one way or other.” Likewise, in the case of Sec., UPSC & Anr. Vs. S. Krishna Chaitanya, reported in (2011) 8 SCC 148, the Hon’ble Supreme Court observed as follows: “We may add here that this Court has observed time and again that an interim order should not be of such a nature that by virtue of which a petition or an application, as the case may be, is finally allowed or granted even at an interim stage. We reiterate that normally at an interlocutory stage no such relief should be granted that by virtue of which the final relief, which is asked for and is available at the disposal of the matter is granted. .....” In the case of Super Cassettes Industries Limited Vs. Music Broadcast Private Limited, reported in (2012) 3 SCC 273, the Hon’ble Supreme Court had the occasion to observe as under: “The often stated principle that Courts would not, normally, grant a relief by way of an interim measure, which is either identical with or substantially the same as the final relief sought in the proceeding, is based on the ground that indiscriminate grant of such interim reliefs are capable of producing public mischief see Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dulnop India Limited and others, (1985) 1 SCC 260 . . .....” 30. Dulnop India Limited and others, (1985) 1 SCC 260 . . .....” 30. True it is that the respondent No. 1 has been a Member of Parliament for two terms and he is also contemplating to contest in the upcoming Parliamentary Elections but this fact itself cannot be termed as a valid ground for granting interim relief to him which amounts to granting the final relief while the writ petition is still pending adjudication. If the respondent No. 1 is allowed to contest the ensuing Parliamentary Elections on the strength of an interim order passed by this Court, that may lead to further chaos and complications in case the writ petition is decided against him. Further, such a recourse, in our opinion, would also be adverse to the public interest at large. 31. In view of the above discussions, we are of the view that the impugned order passed by the learned Single Judge cannot be sustained and the same is therefore set aside. However, looking to the urgency in the matter, we direct the Registry to list the writ petition filed by the respondent No.1 on 05.04.2024 before the learned Single Judge, holding the roster, for final disposal. We request the learned Single Judge to decide the writ petition expeditiously while hearing on day-to-day basis, if required so. 32. Before parting with the records, we deem it appropriate to clarify that our observations made hereinabove are in the context of legality and validity of the impugned order dated 27.03.2024 passed by the learned Single Judge and for the limited purpose of disposal of this appeal. We make it clear that these observations would not have any bearing in the adjudication of the writ petition on merit. 33. With the above observations and direction, this intra-court appeal stands disposed of.